The High Court dismissed an intra-court appeal against a judgment confirming the revisional authority's order. The Court upheld the dismissal of the appeal, agreeing with lower courts that the claim of amicable partition was unproven and that the respondents held valid title based on a registered sale deed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WA No.39 of 2008
The instant intra-court appeal is directed against judgment and order dated 03.01.2008 passed by the learned Single Judge in W.P.(C) No.9707 of 2003, whereby learned Single Judge has dismissed the writ petition confirming the order of the revisional authority.
“Perused the materials on record. Admittedly the suit land belongs to Maguni of the genealogy. As such Gobinda and Madhu respondent nos. 3 and 4 are entitled to Ac.0.54.5 i. 8 anna share. Gobinda has no objection on the sale of Madhu of this 8 anna share, because the learned Advocate for Gobinda did not contest the case. TheR.S.D. dated 4.6.1967 executed by respondent’s father Krushna shows that there was a family partition. Admission is the best piece of evidence. When the appellant’s father admitted the family partition, the appellant denied the same. The respondent nos. 1 and 2 after purchase are in peaceful possession as per report of the Amin attached to the L.C.R. Moreover, Gobinda Lenka respondent no.3 has admitted before the lower court that it belongs to Madhu, the vendor exclusively. Taking the above factors into consideration the learned lower court have rightly allowed the calim of the present respondent Nos.1 and 2 in R.R.P. No.3532/95.
The appeal is without merit and as such it is disallowed.”
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2.1 However, revisional authority in paragraph-4 of rejoinder has observed as under:-
“4.0 Examined the soundness of the impugned order of the appellate authority. Perused all materials available on records including the written notes and documents filed by the parties. They reveal that admittedly the disputed sabik plot No.2168 Ac.1.09 dec. of sabik khata No.479 belonged to Maguni Lenka who died leaving two sons namely Chintamani and Krushna. The petitioner & O.P-5 & 6 are the successors of Krushna and O.Ps 3 & 4 are the successors of Chintamani and O.P.-4 had transferred Ac.0.54-5kadis to O.P.-1 & 2 vide RSD No.793 dt.6.2.80 out out of Ac.1.09 dec. corresponding to L.R. plot No.2522/5552 Ac.0.54.5 dec. The petitioner claims to record the 8 annas share i.e. Ac.0.27 ¼ dec. out of L.R. plot No.2522/5552 in his favour along with the O.P.5 & 6 as per their entitlement through Krushna Chandra Lenka. The appellate authority had disallowed the appeal of the petitioner’s brother O.P.-5 and confirmed the order of the C.O. in Remand Revision Case No.3532/95 wherein the trial court had passed order to record the land in favour of the petitioner. The appellate court had held that there was amicable partition between the parties and the disputed land fell in the share of Madhu who had transferred the L.R. plot No.2522/5552 Ac.0.54.5 dec. to the O.P.-1 & 2 vide RSD No.793 dt. 6.2.80 validly. The recital of the sale deed dt.76 executed by Krushna where in Krushna Lenka had mentioned that he transferred the land as per mutual partition among the cosharers cannot be the vital evidence of the mutual partition of the disputed sabik plot 2168 Ac.1.09 dec. The sale deed executed by Krushna Chandra Lenka can be valid to the extent of his share only. The recital of the sale deed of 1976 cannot be the conclusive proof of amicable partition of the suit land.
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Besides the parawise report submitted by the C.O. shows that the suit sabik plot No.2168 Ac.1.09 dec. corresponds to L.R. plot No.2522 & 2522/5552 L.R. plot No.2522 Ac.0.54.5 was recorded in favour of Govind Lenka, Madhu Lenka and Krushna Lenka the father of the petitioner O.Ps. 5 & 6 and L.R. plot No.2522/5552 Ac.0.54.5 dec. was recorded in favour of Govinda, Chintamani, Krushna, Bhimsen & Brajamohan Das in the consolidation LR stage. Had the disputed sabik plot No.2168 Ac.1.09 dec. fallen in the share of O.P. 3 & 4, they should have raised objection u/s. 9(3) of the Act to declare the name of petitioner’s father Krushna Chandra lenka from the L.R. record basing on the mutual partition. This negates the claim of the opposite parties that the disputed land was mutually partitioned. The O.P-4 along with the proforma OP-3 had a share for Ac.0.27 ¼ dec. in the disputed L.R. plot No.2522/5552 Ac.0.545 dec. as per succession of Chintamoni. Similarly the petitioner and the O.P-5 & 6 have got 8 anna share i.e. Ac.0.27 ¼ dec. out of the suit L.R. plot No.2522/5552 Ac.0.245 dec. as per succession of Krushna Chandra Lenka. The transfer made by O.P-4 in favour of the O.P-1 & 2 is therefore valid in the extent of his share i.e. Ac.0.27 ¼ dec. so far as possession of the suit land is concerned, it is the settled principle of law that the title is the basis of settlement of land records and possession is immaterial. In this disputed L.R. plot No.2522/5552, the petitioner and his brothers O.P-5 & 6 have got valid title for 8 annas share as per succession and entitlement. The courts below have not adjudicated the matter correctly and disallowed the claim of the petitioner basing on the amicable partition among the cosharers which is not proved. The impugned order of the appellate authority being therefore not correct is hereby quashed.”
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“3. This fact is strongly repudiated by learned counsel appearing for the opposite parties. According to him the total lands being Ac.1.09 decimals, half of the same was allotted in favour of Chintamani the father of opposite party Nos.5 and 6, and the other half in favour of the father of opposite party Nos.4,7 and 8. It is stated that after death of Chintamani the area of Ac.0.54.5 decimals of land had to be divided 50:50 between Govinda and Madhu. Admittedly Govinda had not executed the sale deed in favour of the petitioners. There was no document to show that either Govinda bequeathed his share or had alienated the same in favour of Madhu by any registered documents. Law is well settled that title to any property worth of Rs.100/- cannot be created in favour of a person bereft of a registered document.
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record. There is nothing on record to show that he has relinquished his right in favour of Madhu. The genealogy produced before the authority clearly reveals that originally the case property belonged to Maguni Lenka. He had two sons, namely, Chintamani and Krushna. The appellant has purchased from Madhu, the son of Chintamani, but the other son Gobinda was not a signatory to the sale deed.
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K.S. JHAVERI (CHIEF JUSTICE)
……..…………………… K.R. MOHAPATRA (JUDGE)
ss
2 issues framed by the court
Whether the lower courts correctly dismissed the claim of the appellants based on unproven allegations of amicable partition.
Whether the title of the respondents derived from a valid registered sale deed of the transferor.
1 provisions across 1 enactments
Gobinda Lenka and others
Madhu Lenka and others
K.S. JHAVERI
K.R. MOHAPATRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
